Bad Grammar?
The South Bend Tribune yesterday published a story that makes a local judge, Jerome Frese, look bad (as evidenced by comments on the story left by three two morons) for interpreting a statute in a manner favorable to defendants and getting reversed by a unanimous three-judge panel of the Indiana Court of Appeals in three separate cases (which all turned on that statutory interpretation) on the same day back in November. The statute at issue (section 3 of Indiana Code 9-30-5) reads as follows:
[A] person who violates section 1 or 2 of this chapter commits a Class D felony if … the person has a previous conviction of operating while intoxicated that occurred within the five (5) years immediately preceding the occurrence of the violation of section 1 or 2 of this chapter[.]
Judge Frese said that “occurred within . . . five . . . years” ” modifies “operating while intoxicated.” The Court of Appeals says it modifies “conviction.”
But this reasoning from one of the three Court of Appeals decisions (the other two opinions contain exactly identical language) caught my attention:
We conclude that section 3 is not ambiguous, and it is the previous conviction that is subject to the five-year limit, not the act that gave rise to the conviction. While we acknowledge that the word “occurred” is indeed closer to the noun “operating” than it is to “conviction,” simple proximity is not sufficient to support a conclusion that “occurred” could be modifying “operating” in section 3. Very few, if any, would read “we had a meal in France that was delicious and expensive” and conclude that “delicious and expensive” was describing “France.” In any event, while the gerund “operating” is nominally a noun, it is not functioning as such in section 3, but, rather, as the object of the prepositional phrase “of operating while intoxicated,” which is functioning as an adjectival phrase to modify “conviction.” As such, “conviction” is the noun closest to the prepositional phrase beginning with “that occurred within … five … years” and, in our view, is clearly being modified by that phrase as well. In summary, while we acknowledge that word order is important, there is nothing in the word order of section 3 to suggest that the phrase “occurred within … five … years” is intended to modify anything other than “conviction.”
Now, I used to be a sentence diagramming son of a gun, having taught 7th and 8th grade English for a year at a Catholic school back in the mid 90’s. I used to know this stuff cold. But it’s been a while. And I especially doubt myself because I have to assume that the three judges who signed their names to the above passage (one of whom is the Chief Judge) either brushed up on their grammar prior to publishing their opinion or knew what they were talking about and knew they didn’t need to. Nevertheless, after spending about 15 minutes on the internet refreshing my own recollection, I can’t help but continue to maintain the following opinions, in spite of what the Indiana Court of Appeals says:
1. A gerund is by definition a verb that ends in -ing and functions as a noun, so if “operating” in section 3 is a gerund, as the Court of Appeals says it is and as it appears to be, then, contra the Court of Appeals, it is functioning as a noun in section 3.
2. The objects of prepositional phrases are either nouns, pronouns, gerunds (i.e., verbs functioning as nouns), or noun clauses. It makes no sense to say, as the Court of Appeals said, that a word is not functioning as a noun, “but, rather,” as the object of a prepositional phrase.
3. The words “that occurred within … five … years” do not begin a prepositional phrase.
Perhaps some kind reader can set me straight and show me the error of my ways.
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John,
I’m no grammarian—I didn’t even go to Catholic school, let alone teach it—but I also think the Court of Appeals got it wrong.
In my view, “of” makes “operating while intoxicated” an adjectival phrase that modifies the noun “conviction,” and the relative pronoun “that” tells the reader to apply “within the five years . . .” to the now-modified noun.
Take this analysis with a grain of salt. I wasn’t certain what a gerund was until I read your post.
1And by “got it wrong,” I mean the grammatical analysis, not the result.
2Ryan,
Compare these two sentences: “He has a conviction for a theft that didn’t occur.” “He has a conviction for a theft that keeps him from getting hired.”
Both sentences seem to have the same basic structure as the relevant language of the statute at issue, with the prepositional phrase “for a theft” modifying “conviction” in both sentences, just as “of operating while intoxicated” modifies “conviction” in the statutory language. In the first sentence the clause introduced by the relative pronoun “that” clearly modifies “theft” and in the second sentence it clearly modifies “conviction.” The word that the clause modifies is revealed by the substance of the modifying clause. In the statute at issue the substance of the modifying clause provides no such clarification. So the court of appeals’ reliance on the fact that “of operating while intoxicated” modifies “conviction” seems wholly misguided and irrelevant. In its place, it seems it should have used either the Rule of Lenity or “propinquity” (a word used in the opinion, representing a principle advanced by the defendant), which would have led to a different result — one upholding the trial judge and in favor of the defendant.
3